Feature Image:- Trucks seeking to transport sand stuck in Krishna river after flash floods, 300 people rescued (Image source: TNIE)
Rivers and riverine communities in India have been facing significant threats from large scale unsustainable sand mining operations. As part of our annual overview, SANDRP has compiled the prevailing scenario in the country over the year 2021 in first part. The second part has focused on some important policy and governance steps taken by various state governments. This third part tracks top ten judicial decisions and interventions in 2021 by various High Courts, National Green Tribunals (NGT) and Supreme Court.
1.March 2021: NGT directions to States, UTs In March 2021 NGT issued a slew of directions to the chief secretaries of the states and Union Territories (UTs), and the Environment Ministry on a batch of applications relating to updation of enforcement and monitoring mechanism to control and regulate illegal sand mining, including riverbed sand mining. Some of these applications have been pending for about seven years while others have been tagged to the pending matters later, from time to time, in view of common question of illegal sand mining.
A bench headed by NGT Chairperson Adarsh Kumar Goel directed all the states and UTs to strictly follow the Sustainable Sand Management Guidelines, 2016. “We further direct that periodic inspection be conducted by a five-members Committee, headed and coordinated by the State Environment Impact Assessment Authority (SEIAA) and comprising Central Pollution Control Board (PCB), State Pollution Control Board (SPCB) and two expert members of State Expert Appraisal Committee (SEAC) dealing with the subject.” At the national level, a review needs to be conducted at least once in a year by the Secretary of Environment in coordination with the Secretaries Mining and Jalshakti Ministries, the CPCB.
All the states & UTs were directed to publish their annual reports on the subject and such annual reports may be furnished to the Environment Ministry by April 30 every year, giving the status of the issue till March 31. Based on such reports, the ministry has been asked to prepare a consolidated report & publish its own report on the subject, preferably by May 31 every year.
“We direct the Secretary MoEF to convene a meeting in coordination with the CPCB and Mining and Jalshakti Ministries of Central Government and such other experts at National level and representatives of states within three months… holding of such meetings will provide clarity on enforcement strategies and help protection of environment,” it said. https://odishatv.in/nation/illegal-sand-mining-ngt-issues-slew-of-directions-to-states-uts-523028 (03 March 2021)
Disposing of a number of petitions on sand mining, the NGT said holding such meetings will provide clarity on enforcement strategies and help protect the environment. https://www.deccanherald.com/national/north-and-central/ngt-directs-centre-states-to-convene-meetings-to-ensure-scientific-sand-mining-957706.html 3/21 (03 March 2021)
It is not clear if any of this happened in April or May 2021.
2. Kerala HC removes ‘tainted’ mining dept director The Kerala HC quashed the Government’s appointment of CK Baiju as Director of the Mining and Geology (M&G) Department, pronouncing judgment in a PIL. Stating that the Courts were not to be hesitant in stepping in to correct such patent illegality, the Court underscored, “..the Government functions as a trustee of the citizens and, therefore, duty bound to protect the general interests of the public. Whenever the Government overlooks its duty and obligations, the constitutional courts shall not be hesitant to step in and correct such patent illegality, in larger public interest.”
A Bench of Chief Justice S Manikumar and Justice Shaji P Chaly delivered their judgment, stating, “On consideration of the facts and circumstances, we are of the opinion that sufficient public interest is involved in the matter at hand, and that Mr. C.K. Baiju, respondent No.6, was appointed to the post of Director, Mining and Geology (M&G) Department, even though styled as temporary and giving charge, is overlooking all canons of law and beyond comprehension of the normal procedure followed in the matter of promotion, especially due to the fact that he is a tainted officer facing charges and imposed with penalty, and thus, violated fair play and equal opportunity.”
The petitioner, Civic Responsibilities Empowerment Association (CREA), approached the High Court against the State Government’s decision in 2020 giving the officer temporary charge as Director of the Mining Department. Prior to the appointment, he was a Deputy Director of the Department.
The petitioner pointed out that despite findings by the Vigilance and Anti-Corruption Bureau that the officer had prima facie indulged in corrupt practices while holding positions in various district M&G Departments, and consequent departmental inquiries, as well as a complaint before the Kerala Lokayukta, the Government proceeded to appoint him to the post of Director. A few of the corrupt practices alleged against him are the illegal granting quarrying permits, not monitoring licence conditions, allowing operation of brick kilns and quarrying and so on.
The petitioner pointed out that an attempt to promote Baiju to the post of Director in 2015 failed after the matter was taken up in the Kerala Legislative Assembly. Praying that allowing him to continue in the post would send out a wrong message, the petitioners sought to quash the Order. https://www.livelaw.in/news-updates/kerala-high-court-quashes-government-order-ck-baiju-mining-department-director-171861 (28 March 2021)
Other Kerala reports NGT to evaluate sand-mining scenario The NGT decided to appoint an 8-member committee to check whether riverbed sand-mining in Kerala is being done in compliance with the sand-mining policy of the Union govt and various environmental laws. The Southern Bench of the tribunal recommended the formation of the committee after taking suo motu notice of media reports quoting a study that recommended that 3.03 million cubic metres (MCM) out of the 8.15 MCM accumulated in the Bharathapuzha river can be mined.
The Bench comprising Justice K. Ramakrishnan and expert member Saibal Dasgupta said that the court lacked clarity on the procedure adopted by the District Collectors while granting permission for mining the excess sand. It is also not known as to whether the district survey reports are prepared in a scientific manner as per the guidelines, it said.
The expert committee to be led by a senior officer of the MoEF has been entrusted with the task of finding out whether any monitoring is done to ascertain the quantity of sand to be mined, besides seeing whether the departments concerned have approved the mining plan. The committee is also directed to provide a status report on sand mining in riverbeds passing through the forests and eco-sensitive zones, including national parks and sanctuaries. It will probe whether permission is being granted in those buffer areas. The committee is also permitted to co-opt the District Collectors whenever inspection is carried out as part of the field study to find out whether they are following a uniform method in tune with the rules.
The committee is also directed to ascertain as to whether any action has been initiated by the authorities for conducting illegal mining in these areas, including excess mining than the permitted quantity, and what are all the safeguards provided for preventing such illegal activities. The Chief Secretary has to provide all required assistance to the committee. Kerala SEIAA will be the nodal agency. The committee has to submit its report before the tribunal by March 16. https://www.thehindu.com/news/national/kerala/ngt-to-evaluate-sand-mining-scenario-in-state/article33537135.ece (09 Jan. 2021)
3. Himachal Pradesh SC asks Centre to do EIA on flow of river if boulders removed Supreme Court on Feb. 10 2021 adopted a cautious approach and asked Ministry of Environment Forest & Climate Change (MoEF&CC) to do Environment Impact Assessment (EIA) on removal of boulders from the river bed system in Kullu district and how it will affect the flow of rivers including its tributaries.
A bench of Chief Justice SA Bobde and Justices AS Bopanna and V Ramasubramanian observed that removal of sand and stones from the river bed has created problems in Kerala, which has witnessed massive floods a couple of years back. “It is a well-known fact that stones and boulders have a direct impact on the flow of rivers. We find it imperative to direct the MoEF&CC to do an EIA of the proposed site and specifically make a report whether it will have an adverse impact on the flow of the river,” the bench said.
The SC directed that the cost of EIA shall be borne by a company Paras Stone Crusher, who sought court’s nod to carry on its business and collect boulders falling in the river bed from nearby forest areas in Kullu district. The Counsel appearing for the company said that they have environment clearance for the proposed site and are engaged in the business of stone crushing, which involves collection of naturally occurring stones and boulders as raw materials for use in stone crushing factories and thereafter selling the output produced as ‘aggregate’. https://www.newindianexpress.com/nation/2021/feb/10/sc-asks-centre-to-do-environment-impact-assessment-on-flow-of-river-in-himachal-pradesh-2262307.html (10 Feb 2021)
Other Himachal Pradesh developments NGT panel to probe illegal mining in Swan On the issue of illegal mining in Sombhadra river (also called Swan river) in Una district, NGT has set up a fact-finding five-member committee to visit the site and give an independent report & suggest remedial action.
The committee will be headed by former judge of Punjab and Haryana high court Justice Jasbir Singh (retd) and have regional officers of the CPCB, the MoEF&CC, the Central Soil and Water Conservation Research Institute (CSWCRI) of Dehradun, and the Himalayan Forest Research Institute (HFRI) in Shimla. MoEF&CC regional office at Chandigarh will be the nodal agency. The tribunal has also ordered the HP environment secretary, the SPCB and the Una district magistrate to verify facts and take further steps in the matter.
Applicant Amandeep had approached NGT with the complaint of illegal mining at Sombhadra river. He had stated that the central government had sanctioned Rs 922 crore for the channelisation of the river. He said 73 khads (mini-water channels from different catchment areas of nearby villages) were also channelised so that the agricultural land of the nearby villages may be protected during rainy season.
He alleged that sand mafia having political shelter under the garb of a mining licence were lifting sands and other material from the river bed in an unscientific manner by using big machines causing constant danger to the river and the channelisation. Thousands of trucks were being loaded beyond the permitted capacity and running on the roads in utter violation of the norms. These were causing damage to the roads, causing pollution in the area, and inconvenience to the public at large and causing accidents. https://timesofindia.indiatimes.com/city/chandigarh/ngt-forms-independent-panel-to-probe-illegal-mining-in-swan-river/articleshow/81357815.cms (6 March 2021)
The petitioner alleged that there is every possibility that it may cause not only loss, damage and destruction to the channelisation work of the Swan river, it may also cause damage to the bridges, leading to loss of public funds already spent for this purpose, besides loss of water.
The NGT, in its order on March 2, has also asked the secretary (environment), SPCB and the Una deputy commissioner to take note of the incidents, verify the facts and take steps following due process of law. The committee has also been asked to recommend measures to protect the local biodiversity and environment.
Earlier, the NGT had passed similar orders asking the state govt to stop illegal mining on the river beds in districts of Mandi, Kangra, Kullu and Sirmaur increasing chances of environmental disasters and flash floods. https://www.outlookindia.com/website/story/india-news-ngt-sets-up-5-member-panel-to-study-impact-of-illegal-mining-on-swan-river-in-himachal/376277 (5 Mar 2021)
In its 4 page order, NGT directed the SPCB & Una district magistrate to provide logistic support to the committee. The committee will be at liberty to take assistance from such other institutions, experts or individuals as necessary. https://www.tribuneindia.com/news/himachal/illegal-sand-mining-in-hp-ngt-sets-up-panel-headed-by-retired-judge-222873 (10 March 2021)
4. Karnataka HC upholds order on river sand extraction during monsoon The High Court of Karnataka has upheld the order of the Department of M&G prohibiting sand extraction from rivers during rainy season. It observed that the ban was incorporated into the law for protecting the environment. A Division Bench comprising Chief Justice Abhay Shreeniwas Oka and Justice Suraj Govindaraj passed the order while rejecting a petition filed by Fakkirappa M. Murgod, who had a lease for sand extraction in Chamarajanagar district for a period of five years from August 10, 2017.
The petitioner had questioned the decision of the Deputy Director, Department of M&G, Chamarajanagar, prohibiting sand extraction from June 5 to October 15 every year. The petitioner contended that his mining lease did not contain a condition of sand extraction being prohibited during monsoon. However, the Bench agreed with the contention of the government that the Karnataka Minor Mineral Concession Rules, 1994, and the Sustainable Sand Mining Management Guidelines, 2016, clearly prohibit river sand mining during rainy season.
The court also pointed out that the legislature was conscious of the fact that the period of actual quarrying operations could be affected by rains or floods, & had therefore provided the sand quarrying permission for up to five years, inclusive of the non-quarrying periods such as rainy season, floods, & natural calamities. https://www.thehindu.com/news/national/karnataka/karnataka-hc-upholds-order-on-river-sand-extraction-during-monsoon/article34590679.ece (18 May 2021)
Other Karnataka Reports Mining in CRZ: HC asks state if it is ready for study The High Court has directed the government to make a statement as to whether it is willing to conduct a study on the issue of grant of temporary permit to extract sand in the coastal regulation zone. The PIL was concerning sand mining permits at Phalguni river in Dakshina Kannada.
A division bench headed by Chief Justice Abhay Shreeniwas Oka passed the order on the PIL filed by Franky D’Souza and nine others from Mangaluru. The petition challenged issuance of temporary permits for sand mining on the banks of Phalguni river at Kenjar, Thukur and Malavoor villages.
In the previous hearing, the court had observed that none of the three provisions in the Karnataka Minor Mineral Concession Rules, 1994 (Rule 31-ZA, Rule 31-ZB and Rule 31-ZB-A) contemplate grant of temporary licences for sand mining. The court had also said that no temporary licences for sand mining shall be granted contrary to the said rules. https://www.deccanherald.com/state/top-karnataka-stories/sand-mining-in-crz-karnataka-hc-asks-state-if-it-is-ready-for-study-957874.html (04 March 2021)
Though the govt claimed that provisions of the Karnataka Minor Mineral Concession Rules, 1994, allows removal of sand in Coastal Regulation Zone as per government notification issued in 2011, the HC pointed out that question is whether the State is under obligation to make a study on impact of sand removal on the environment and the traditional occupations of villages. https://www.thehindu.com/news/national/karnataka/can-govt-study-impact-of-sand-removal-on-environment-traditional-jobs-asks-hc/article33984408.ece (4 Mar 2021)
5. Tamil Nadu Quarrying must be done in a scientific manner: HC Disposing of a batch of PIL petitions that complained of illegal and rampant sand quarrying in southern districts under the guise of quarrying ‘savudu’ sand, a Division Bench of Justices M. Sathyanarayanan and B. Pugalendhi issued a series of directions to the State to follow so as to curb illegal quarrying. The court observed that it appeared that ‘savudu’ quarries were permitted without any lease agreement, without any mining plan and without any environmental clearance. Further, the court said the Department concerned did not take any steps to identify the mineral for examination with a laboratory to ascertain the contents / components of the mineral.
The court directed the State to constitute a high-level committee comprising geologists and other experts and eminent officers from the Public Works Department and Water Resources Department to conduct a detailed study/ survey on possibility or availability of river sand on adjacent patta lands to rivers. These places have to be notified and declared protected zones and there cannot be any quarrying operations other than by the govt in the notified areas. There shall not be any grant of quarry lease without ascertaining the composition / component of the minerals and without obtaining a report from an authorised lab, the judges said.
The court directed the Department of M&G to establish a lab on its own or to authorise any lab in this regard. If the committee finds availability of sand in the quarries, it shall be reported to the Commissioner of Geology and Mining, marking a copy to the High Court. The Commissioner shall take necessary action against officials who granted quarry permits without ascertaining the composition of minerals, the court said. https://www.thehindu.com/news/cities/Madurai/quarrying-must-be-done-in-a-scientific-manner-says-hc/article33874135.ece (12 Feb. 2021)
The judges observed that excessive sand extraction in river beds or near them will directly impact ecological equilibrium and adversely impact instream biota and riparian habitats. Hence, it is imperative to study replenishment of river bed sand. The judges said that all savudu quarries in the state have been permitted without any lease agreement or ascertaining the composition of the mineral, without mining plan and environmental clearance against the relevant provisions of law.
The judges directed that there shall not be any quarry operation in the name of colloquial or local terms and any lease should be in accordance with minerals notified under Section 3 of Mines and Minerals (Development and Regulation) Act. The judges further directed that any quarry operations shall be permitted only by way of lease agreement as per Article 299 (I) of the Constitution. The judges also directed the government to adapt the Mineral Conservation Rules, 2017, framed by the central government or frame separate rules, as directed by the Supreme Court within 6 months. https://timesofindia.indiatimes.com/city/madurai/dont-lease-sand-quarries-sans-mineral-content-report-hc/articleshow/81099730.cms (19 Feb 2021)
Other Tamil Nadu developments M-Sand manufacturers challenge mineral transportation rules The Madras High Court on Dec. 14 2021 directed the state govt to file its counter affidavit in 2 weeks to a writ petition filed by the Tamil Nadu M-Sand Manufacturers’ Welfare Association to declare the Tamil Nadu Prevention of Illegal Mining, Transportation and Storage of Minerals and Mineral Dealers Rules of 2011 illegal and unconstitutional.
The orders were passed after the court heard elaborate arguments made by advocate Naveen Kumar Murthy, representing the petitioner association. He said the 2011 rules were ex facie illegal, since they brought within their ambit subject matters that did not fall under the definition of ‘minerals’, as found in the Mines and Minerals (Development and Regulation) Act of 1957. According to him, products such as blue metal or M-sand could not be termed ‘minerals’. Counsel also told the court that members of the petitioner association and other stone crusher unit operators in the state were being harassed by government officials citing the 2011 rules by demanding permits for the transportation and storage of M-sand. https://www.thehindu.com/news/national/tamil-nadu/m-sand-manufacturers-challenge-rules-on-mineral-transportation/article37956643.ece (15 Dec. 2021)
No illegal sand mining in Srivaikundam dam: NGT Panel The Public Works Department (PWD) received a clean chit from a NGT panel over an allegation of illegal sand mining in the guise of desilting at Srivaikundam in Thoothukudi. However, the counsel for the petitioner R Nallakannu argued that the joint committee’s observations cannot be taken on face value as the panel visited the site nearly 4 years after the sand mining was alleged.
The PWD had commenced the desilting in 2015 and continued with the work till August 11, 2016, until the NGT interfered after multiple petitions were filed alleging sand mining in the guise of desilting. “In the last four years fresh silt got deposited, erasing all physical evidence,” the counsel for petitioner added. The NGT panel then said that it would like to dispose of the matter and posted it to April 23, 2021 for judgement. https://www.newindianexpress.com/cities/chennai/2021/apr/16/no-illegal-sand-mining-in-srivaikundam-dam-panel-2290529.html (16 April 2021)
NGT refuses total ban on dredging “It is for the State Government to protect environment against over exploitation while utilizing the natural resources gifted by Mother nature, using it for sustainable development and economic development keeping into account the responsibility of maintaining equilibrium of protecting environment by applying principle of Public Trust Doctrine, Precautionary Principle, Sustainable Development and Intergenerational equality,” said a bench comprising Justice K Ramakrishnan and expert member Dr. K. Satyagopal in a recent order.
The NGT was dealing with a bunch of pleas which contended that in the guise of desilting the Srivaikundam dam in Tuticorin district, illegal mining was being carried out. The petitions also alleged that desilting was not being done in a scientific manner causing serious environmental damage. Though the NGT held that that no EC is required for in the matter, it however, said no illegal mining be permitted in the guise of de-silting or dredging of dam sites or lakes or rivers. https://economictimes.indiatimes.com/news/india/ngt-refuses-total-ban-on-dredging-in-tamil-nadu-says-resources-of-nature-be-used-scientifically/articleshow/82829617.cms (21 May 2021)
The bench further directed the government to have adequate control and monitoring mechanisms for mining, desilting or dredging, while instructing enforcement authorities to take stringent action against persons violating the norms and engaged in illegal sand mining or other exploitation of the mines or minerals than the permitted quantity. The government was directed to have a permanent Expert Appraisal Committee in each district. https://www.thehindu.com/news/cities/chennai/cannot-ban-dredging-desilting-of-dams-ngt/article34610256.ece (21 May 2021)
6. Goa HC: authorities appear ready to be hoodwinked by the illegal sand miners Despite having received a complaint, along with details and photographs of instances of sand mining in north Goa, and with no action being taken by the officials concerned, the high court of Bombay at Goa has asked for a status report to be filed within a week.
The division bench stated that it had received a complaint with particulars of sand mining with timings and spots where the complainant stated that he approached the deputy collector who is not taking any action. Advocate Norma Alvares also told the court that deputy collector Dharbandora Naik, appointed to take action in cases of illegal sand extraction in south Goa, has been very responsive to the complaints made and as a result, the problem has been substantially contained. https://timesofindia.indiatimes.com/city/goa/sand-mining-hc-wants-status-report-in-1-week/articleshow/83969779.cms (30 June 2021)
The HC of Bombay at Goa directed that police personnel be placed at 2 government properties to ensure that illegal sand extraction stops. Advocate Norma Alvares, representing the Goa rivers sand protectors network told the court that illegal sand mining is perennially occurring on land owned by the government- in a property of the fisheries department at survey number 114/2 at Oxel Bhati in Siolim and below the Amona bridge, in property belonging to the PWD.
“Until the next date, police personnel should be placed at the said 2 sites. If, between today and September 6 there is any activity in relation to illegal extraction of sand at the aforesaid sites, then the police inspectors of the police stations nearest to the two sites will have to be held prima facie responsible,” stated the division bench comprising Justices Mahesh Sonak and M S Jawalkar. https://timesofindia.indiatimes.com/city/goa/illegal-sand-mining-taking-place-in-govts-own-backyard-petitioner-to-hc/articleshow/85911730.cms (04 Sept. 2021)
The Bombay HC bench in Goa on Sept. 30 2021 slammed the state police and administration for not doing enough to rein in the sand mafia from pilfering sand from the state’s rivers illegally. The court directed the police to seize and destroy unregistered canoes and impound the trucks which illegally transport sand, & to install CCTV cameras at illegal sand mining sites.
“The authorities, who were duty-bound to prevent this sand mining, do not appear to be seriously interested in implementing the orders made by us from time to time. According to us, the persons involved in illegal sand mining are out to hoodwink the authorities. Unfortunately, we find that in many cases even the authorities appear to be too eager to be hoodwinked,” Justices M.S. Sonak & M.S. Jawalkar said in their order, while hearing a petition filed by Goa Foundation. https://www.business-standard.com/article/current-affairs/install-cctv-cameras-to-curb-illegal-sand-mining-in-goa-bombay-hc-121093000857_1.html (30 Sept. 2021)
Other Goa judicial developments NGT ask govt to serve notice to SEIAA for allowing mining The NGT has ordered that notices are be served to the SEIAA after a voluntary organisation challenged the permission granted by the authority permitting sand extraction in River Chapora. The SIEAA has been given time till February 9, 2022 to respond. “The impugned order (by Goa-SEIAA) did refer to the order of the Supreme Court of India in Deepak Kumar’s case as well as the orders passed by this tribunal and also the EIA Notification, 2006 (as amended till date) and, however, did not state anything as to the compliance of the said judgment and EIA notification. In the light of the same, the tribunal is inclined to entertain this appeal,” the tribunal said.
The Goa River Sand Protectors Network, functioning under the Goa Foundation, approached the tribunal against the Goa-SEIAA order stating that ‘there has been no due and proper application of mind before according environment clearance and hence prays for interference’. The Goa-SEIAA had approved sand mining in 4 stretches of River Chapora at its meeting held on October 5, 2021. https://timesofindia.indiatimes.com/city/goa/serve-notice-to-govt-authority-for-sand-mining-nod-says-ngt/articleshow/88286389.cms (15 Dec. 2021)
7. Uttarakhand HC directs Mussoorie Authority to conduct in-depth probe The HC on March 10 2021 directed the vice-chairman of the Mussoorie Dehradun Development Authority (MDDA) to conduct an in-depth probe and inform the court about the officers responsible for the transfer of riverbed land to private individuals near Dehradun’s Sahastradhara area. The direction came from the bench of Chief Justice RS Chauhan and Justice Alok Kumar Verma while it was hearing a PIL filed by Doon-based social worker Ajay Narayan Sharma.
Sharma had alleged, in his PIL, that the encroachment has been made in the upper region of Sahastradhara road on a rivulet named Aanwala-Ki-Rao which is now facing an existential crisis because the illegal construction and plotting has led to a change in the course of the rivulet. “Even in such jal magna bhoomis (water holdings), revenue records are being systematically converted into banjar bhoomi (banner land) and construction has been allowed… This is changing the very character of the said rivulets in the pristine area of Doon Valley, which has been a notified Eco-Sensitive Area since 1989,” read the petition.
The court has also issued notices to the state government as well as district magistrate Dehradun and has directed all three respondents to file their responses by April 7. “The court has directed the MDDA vice-chairman to tell what actions have been taken against the responsible officials and what steps have been taken to cancel all illegal transfers. The court has now listed the case for further hearing on April 8,” Negi said.
The rivulet Aanwala-Ki-Rao is a tributary to Doon Valley’s Rispana river. “That the coming up of the said encroachments is not just blatant encroachment of revenue land, it also compromises the much touted program of the government, namely the rejuvenation of River Rispana. It is noteworthy that river Aanwal-Ki-Rao is a direct tributary of Rispana and therefore, any impact on its ecological flow and health will directly impact the flow of the river,” the petition added. https://timesofindia.indiatimes.com/city/dehradun/riverbed-land-near-sahastradhara-transferred-to-private-parties-hc-directs-mdda-v-c-to-conduct-in-depth-probe/articleshow/81436683.cms (11 March 2021)
8. Haryana ‘Mining changed Yamuna’s course’ Officials of the Sonipat mining department and the SPCB have been accused of filing false reports with NGT claiming there was no change in course of the river or violation of norms. Sonipat resident Krishan Chander had approached the tribunal earlier in 2020 alleging that DSP Associates, the mining company, diverted the natural flow of the Yamuna by digging a pit that was 20 feet deep and 1km long, and building a bund.
In June 2020, NGT sought a factual report from Haryana SPCB on the issue. The board filed a report in October 2020 stating the natural flow of the river wasn’t obstructed and a separate road had been constructed for transportation of the mined material. The report was challenged by the petitioner, following which NGT formed a committee in December 2020 to prepare a fresh report. The panel submitted its report in March 2021, in which it highlighted that the course of the river was changed for illegal mining, proving the earlier report false.
It recommended that an environmental compensation of Rs 1.64 crore be imposed on the company. The committee also observed that illegal mining continued with the connivance of government officials for three years, a sand bund was illegally erected, in-stream mining was carried out, and river flow was illegally diverted. In spite of this, HSPCB falsely reported that there were no violations, it said.
In a hearing on July 14 2021, NGT chairperson Justice Adarsh Kumar Goel directed the Haryana chief secretary to review the existing monitoring mechanism in the light of the facts disclosed in the case. “The chief secretary may also look into the conduct of the errant officers who failed to take action against illegal mining and gave false reports to this tribunal earlier,” the order said. The tribunal further directed that the state environment department, along with the Sonipat district magistrate, prepare and execute a restoration plan for the area affected. https://timesofindia.indiatimes.com/city/gurgaon/mining-changed-yamunas-course/articleshow/84511708.cms (18 July 2021)
The NGT also directed the Chief Secretary, Haryana, to ensure a legal action, including prosecution and blacklisting of such units. Krishan Chander had filed a complaint against a private company, M/s DSP Associates, Sonepat, for illegal mining by diverting the natural flow of the river. He said the firm had stopped the natural flow of the Yamuna at Tikola village. The fresh report was submitted by the committee to NGT on March 30 showed that sand bund was built across the river and was demolished on October 23.
It was also mentioned that the mining activity was permitted to be resumed on October 28 by the department. The report further showed that the mining continued for 824 days without any check. The fact that mining continuing for 3 years without any action by the statutory regulators showed the failure of the statutory regulatory mechanism, the NGT said. https://www.tribuneindia.com/news/haryana/ngt-imposes-rs-1-64-cr-fine-on-sonepat-unit-for-violating-eco-norms-287816 (25 July 2021)
The Principal bench headed by Justice Adarsh Kumar Goel said, “Remedial action needs to be taken with the intervention of the higher authorities.” https://www.indialegallive.com/national-green-tribunal/ngt-directs-remedial-action-against-sonipat-firm-for-illegal-mining-diverting-flow-of-river/ (17 July 2021)
The mining lease to DSP Associates for sand mining on 42.5 hectares in Sonepat’s Tikola village was given in 2015, while the EC was granted in 2016. SPCB had granted the “consent to establish” in 2016, while the “consent to operate” was given on October 24, 2020. It was valid up to Sept 30, 2023. https://www.tribuneindia.com/news/haryana/rs-1-64-crore-fine-on-contractor-for-illegal-mining-in-sonepat-233307 (02 April 2021)
9. Bihar Nov 2021: SC allows sand mining A three-judge bench headed by Justice L Nageswara Rao directed that exercise of preparation of district survey report for the purpose of mining in Bihar in all the districts shall be undertaken afresh. “It cannot be in dispute that though the developmental activities are not stalled, the environmental issues are also required to be addressed. A balanced approach of sustainable development ensuring environmental safeguards, needs to be resorted to… At the same time, it also cannot be ignored that when legal mining is banned, it gives rise to mushroom growth of illegal mining, resulting into clashes between sand mafias, criminalisation and at times, loss of human lives,” the bench also comprising justices Sanjiv Khanna and BR Gavai said.
The order came on an appeal filed by the government against an order of the NGT which directed the State to undertake further exercise for preparation of a fresh district survey report for Banka. The NGT order had come on a plea filed by Bihar resident Pawan Kumar and others seeking proper sand mining in accordance with law and the regulatory framework including various decisions of the tribunal. The court said the draft survey reports shall be prepared by the sub divisional committees consisting of the sub divisional magistrate, officers from Irrigation Department, SPCB or Committee, Forest Department, geological or mining officer.
“The same shall be prepared by undertaking site visits and also by using modern technology. The said draft District Survey Reports (DSR) shall be prepared within a period of 6 weeks from the date of this order. After the draft DSRs are prepared, the District Magistrate of the concerned district shall forward the same for examination and evaluation by the SEAC,” the bench said. The draft DSRs shall be examined by the SEAC within a period of six weeks and its report shall be forwarded to the SEIAA within the aforesaid period of 6 weeks from the receipt of it, the court said. The top court said that while preparing survey reports and the appraisal thereof by SEAC and SEIAA, it should be ensured that a strict adherence to the procedure and parameters laid down in the policy of January 2020 is followed. https://www.ndtv.com/india-news/sc-allows-sand-mining-in-bihar-says-ban-causes-huge-loss-to-public-exchequer-2605997 (10 Nov. 2021)
The Supreme Court permitted the state of Bihar to carry on mining activities through Bihar State Mining Corporation. There is the need to ensure the public exchequer is not deprived of its share in legalised mining. https://www.downtoearth.org.in/news/governance/supreme-court-gives-conditional-go-ahead-to-bihar-to-start-sand-mining-80207 (15 Nov. 2021) The order can be seen here. https://www.livelaw.in/environment/supreme-court-ngt-sand-mining-public-exchequer-185316 (11 Nov. 2021)
10. Rajasthan SC panel recommends Rs 10 lakh per vehicle fine The central empowered committee (CEC) constituted by the Supreme Court in Feb 2020 has recommended imposing a fine of Rs 10 lakh per vehicle and Rs 5 lakh per cubic meter of sand seized as penalty against illegal Bajri mining in Rajasthan. After The committee recently submitted the report on Dec 23, 2020, which comprises 111 point recommendations.
The CEC suggests that the MoEF&CC issues EC to all the valid LoI (letter of intent) holders recommended by the expert appraisal committee (EAC) in its meeting, held during 2014-2016, without insisting on submission of scientific study report as a precondition for the grant of EC within a period of 3 months, said a senior official of the mines department.
Other recommendation of the CEC included that all the Khatedari leases located within 5 kms from the river bank as well as leases, where violation of the lease conditions including misuse of e-ravannas are detected, are terminated forthwith and the state government shall not issue fresh Khatedari leases except for Palaeo deposits in district of Bikaner without the approval of this court, said a senior official. https://www.hindustantimes.com/india-news/sc-panel-recommends-rs-10-lakh-per-vehicle-fine-to-curb-illegal-bajri-mining-in-rajasthan/story-GrzF9aGnHKt02ye3tkPP5I.html (01 Jan. 2021)
CEC said the state tacitly participated in “the free-for-all loot of this valuable natural resource”, questioning the “liberal” grant of ECs. The report submitted to the Court says, “CEC has no hesitation in concluding that the issue of mining leases in khatedari (agricultural/revenue) lands has directly facilitated legalising extraction, transportation and sale of illegally extracted sand from the river beds in the state.”
The report also criticises the MoEF&CC for the delay in granting ECs to holders of letters of intent in sand mine leases, saying this “prolonged impasse in legal mining” had led to “rampant” illegal mining of river sand.
The report states that the collection of sand in Rajasthan was about 57 MMT per annum in 2016-17 before the Supreme Court order restraining sand mining, falling to 5 MMT per annum in 2019-20. “According to the state government only about 25-30% of the demand is fulfilled from lawful mining activities. The resultant gap is the main driving force behind illegal sand mining,” says the CEC. https://indianexpress.com/article/india/sand-mining-sc-panel-report-slams-rajasthan-free-for-all-loot-questions-leases-near-rivers-7155109/ (21 Jan. 2021)
The Supreme Court on Oct 27 2021 reserved its verdict after a three-judge bench headed by Justice Nageswara Rao heard all parties. The Apex court had asked the parties to file a written submission by Oct 29. Following which the verdict can be pronounced. https://timesofindia.indiatimes.com/city/jaipur/top-court-reserves-verdict-on-2017-sand-mining-case/articleshow/87320368.cms (28 Oct. 2021)
On Nov. 11, 2021, the apex court approved for implementation most of the recommendations made by CEC. The court observed that compensation/penalty cannot be restricted to the value of illegally-mined mineral and cost of restoration of environment should also be considered. The cost of restoration of environment as well as the cost of ecological services should be part of the compensation, the bench comprising Justices L. Nageswara Rao, Sanjiv Khanna and BR Gavai observed. The polluter, according to the court, is liable to pay the cost to the individual sufferers as well as the cost of reversing the damaged ecology.
The court, however, noticed that, the basis for imposition of exemplary penalty of Rs. 10 lakh per vehicle and Rs. 5 lakh per cubic metre of sand has not been stated by the CEC in its report. The CEC is directed to follow the directions given by the NGT in respect of imposition of penalty / determining scale of compensation for illegal mining and the provisions of the 2020 Sand Mining Guidelines and determine the penalty / compensation afresh and submit a report to this Court within a period of 8 weeks from Nov 11. https://www.livelaw.in/top-stories/supreme-court-illegal-sand-mining-compensation-cannot-be-restricted-to-value-of-illegally-mined-mineral-cost-of-restoration-of-environment-also-to-be-considered-185341 (11 Nov 2021)
The court also approved another recommendation of the CEC – the termination of khatedari leases (sand mining leases on agricultural land) which are located within 5 km from the river bed. https://indianexpress.com/article/cities/jaipur/sc-legal-riverbed-sand-mining-rajasthan-7618984/ (12 Nov. 2021)
Following this Mines Department launched action to stop the mining activities within the 5-km radius of rivers. As many as 173 sand mining leases on agricultural land in the demarcated areas have been cancelled. https://www.thehindu.com/news/national/other-states/sand-mining-activities-on-farm-land-near-riverbeds-stopped-in-rajasthan/article37475572.ece (13 Nov 2021)
Some other relevant developments
Telangana Krishna-Godavari mining: NGT disposes plea The NGT has disposed of the application seeking directions against illegal sand mining in the Godavari-Krishna river beds and free distribution of sand while stating that the issue of free distribution of sand in violation of Article 14 of the Constitution is beyond our jurisdiction and the said issue may be raised at an appropriate forum.
The bench comprising of the Chairperson Justice Adarsh Kumar Goel, Justice Sudhir Agarwal, Justice M. Sathyanarayanan, Justice Brijesh Sethi, and expert member Dr. Nagin Nanda, considered the issue whether what is termed as ‘dredging’ in Godavari-Krishna river beds and its tributaries in Telangana by the State Authorities is illegal mining, as alleged by the applicant. The main surviving grievance of the applicant is that in the name of desiltation, sand mining is being done without mandatory EC, to provide free sand to the construction companies. https://www.indialegallive.com/top-news-of-the-day/news/illegal-sand-mining-godavari-krishna-river-ngt/ (19 June 2021)
Odisha NGT seeks report on sand mining in Subarnarekha The NGT asked the state government to form a special panel and examine the allegations of illegal sand mining in Jaleswar area of Balasore district and submit a report within 2 months. The tribunal in its written order also made CPCB, SEIAA and SPCB as parties to the panel. It also added, “SEIAA, will be the nodal agency for coordination and compliance. Based on the observations of the Committee, the concerned statutory authorities may take appropriate action.”
The development followed a petition in the tribunal seeking its intervention in the alleged illegal sand mining along Subarnarekha river under Jaleswar tehsil in Balasore. The original petition had claimed that sand mining along Subarnarekha river was in violation of the Environment Protection Act, 1986. Several norms of sand mining were also found to be flouted. https://www.orissapost.com/ngt-seeks-report-on-sand-mining-in-subarnarekha/ (28 Jan 2021)
The bench of Justice B Amit Sthalekar (Judicial Member) and Saibal Dasgupta (Expert Member) said, “The committee shall examine the site and submit its report stating therein specifically as to whether excess sand has been excavated beyond the licence granted and whether heavy machines have been used for excavation of sand which is contrary to the rules. The committee shall also enumerate any violation of the environmental clearance certificate or consent to operate”. https://www.newindianexpress.com/states/odisha/2021/apr/18/panel-to-probe-illegal-sand-miningfrom-mahanadi-river-bed-in-odisha-2291485.html (18 April 2021)
NGT lashed out at Balasore Collector and others who were part of a special committee formed by the tribunal to examine the allegations of illegal sand mining along the Subarnarekha river for their alleged lax attitude in complying with its earlier order. The tribunal bench comprising Justice B Amit Sthalekar and Saibal Dasgupta in their court hinted that there had been some deliberate concealment of facts. It also granted the committee one last opportunity and threatened the panel with criminal action if the earlier order of the tribunal were not complied with. https://www.orissapost.com/ngt-lashes-out-at-panel-examining-illegal-sand-mining-in-subarnarekha/ (9 June 2021)
The NGT has questioned the decision of the SPCB of granting consent to sand mine operators to mine sand from the Subarnarekha river in excess of what was allowed in the EC. The tribunal found that as per the environmental clearance granted by the SEIAA in December 2017, mineable reserved are 20,000 M3 of sand against the EC for only 5,000 M3 annually allowing for replenishment of 25 per cent of the mineable reserve over the lease period.
The NGT asked SEIAA to file an affidavit within 4 weeks answering the queries of the tribunal and responding to the averments made in the additional affidavit of the SPCB. The tribunal’s order came following an application filed by Laxmidhar Palai. https://www.orissapost.com/ospcb-in-dock-over-granting-consent-to-mine-excess-sand/ (19 Jun 2021)
NGT on mining in Mahanadi river NGT on April 16, 2021 constituted a joint committee to probe into allegations of illegal extraction of sand allegedly by using excavators from Mahanadi river bed at Nuapatana under Tangi-Choudwar tehsil of Cuttack district. Srikant Pakal and another resident of the area had filed an application. The bench ordered for the joint inquiry after hearing the arguments of their counsel Sankar Prasad Pani. The petition alleged that remote sensing satellite pictures show extensive degradation of the river bed and extraction of sand illegally through mechanized means. https://www.newindianexpress.com/states/odisha/2021/apr/18/panel-to-probe-illegal-sand-miningfrom-mahanadi-river-bed-in-odisha-2291485.html (18 April 2021)
NGT on mining in Brahmani river NGT directed the State government to initiate measures for restoration of banks of Mahanadi and Brahmani river banks adversely impacted by illegal extraction of minor minerals, earth and soil in Odisha’s Kendrapara district.
Extraction of minor minerals and earth by the Rail Vikash Nigam Ltd without the EC for the construction of 81km long Haridaspur-Paradip rail line had adversely affected the river banks. 4 petitioners- Sasee Bhoosan Pattanayak, Ares Khatua, Alaya Samantaray and Pratap Chandra Mohanty had sought NGT to intervene. https://www.thestatesman.com/cities/bhubaneshwar/ngt-orders-govt-restore-riverbanks-impacted-illegal-extraction-soil-sand-1503025856.html (20 Nov 2021)
NGT ordered a probe to ascertain the veracity of allegations of excess sand mining using excavators on Brahmani river bed in Lahunipara tehsil of Sundargarh district and the consequent environmental degradation. NGT’s east zone bench in Kolkata ordered the probe on Dec. 8, 2021 basing on an application by Kandra Battachhatri and 21 other residents of villages near the Kenapali sand quarry.
A bench of Justice B Amit Sthalekar (judicial member) and Saibal Dasgupta (expert member) constituted a committee to enquire into the matter and submit a report along with environmental compensation amount that can be imposed on the lessee within 4 weeks. The SEIAA will be the nodal agency of the committee, the case to be next heard on Jan 28, 2022. https://www.newindianexpress.com/states/odisha/2021/dec/12/ngt-orders-probe-into-illegal-sand-mining-on-brahmani-river-bed-in-odishassundargarh-2394719.html (12 Dec. 2021)
Andhra Pradesh Mining dept violated norms in sand mining: NGT panel A NGT joint committee found that mining department has violated environmental rules while doing sand mining in Araniar river. The NGT issued orders on Sept 21, appointing the joint committee and to inspect the area and file a report after Dasu Manikantaiah filed a petition in NGT southern bench. The petitioner alleged that sand mining was done in Chittoor district without EC. Chittoor district officials said: “As per the new sand policy of AP government, EC is required for four and above order streams but not for one to three order streams. It is only for local consumption needs and not for commercial mining.” https://timesofindia.indiatimes.com/city/hyderabad/ap-mining-dept-violated-norms-in-sand-mining-ngt-panel/articleshow/87545186.cms (06 Nov. 2021)
NGT suggests green compensation, penalty A joint committee appointed by the NGT southern bench has recommended Rs 2.45 crore compensation and Rs 7 lakh penalty on the sand reach contractor for damaging the environment at river Godavari mouth situated between Andhra and Puducherry. The petitioner alleged that indiscriminate, sand mining is being carried out at Yanam and in border areas of Andhra and Puducherry, without environment or other clearances from statutory authorities.
Contractors are also involved in in-stream mining using huge machinery sand boats, and large number of trucks are being used for transport of such illegally mined sand. In Jan 2020 the committee submitted the report and indicated the areas where illegal sand mining was taking place. The NGT directed the committee to assess environmental compensation and to submit further report. The latest reports say that district survey report shall be prepared and the quantity of sand reserves shall be assessed. https://timesofindia.indiatimes.com/city/hyderabad/sand-mining-ngt-suggests-green-compensation-penalty/articleshow/88348526.cms (18 Dec. 2021)
Summary For Indian judicial system, riverbed mining governance is proving an ever entangling riddle. Cases are due to indifferent state governments and reluctant bureaucracy. Most of cases shows that basic responsibilities and minimum expected work is not being done by the governments. Be it completion of due processes including DSR, replenishment studies in transparent manner before allowing mining or ensuring compliance of norms and adequate monitoring during mining operations and transportation.
The various High Courts and the Supreme Court of the country have been trying to educate governments understand the spirit of Public Trust Doctrine, Precautionary Principle, Polluters Pay and Sustainable Development principles. However, the Judiciary’s approach of forming committees and awarding penalties is not working to curb the menace. The Judiciary also needs to bring into picture the biggest stake holder: the local communities. There is no compensation for the damages that the local communities suffer.
The interventions in NGT have been reaching no meaningful conclusion. In most of cases, the tribunal have been forming inquiry panels in same way governments’ set up committees and then dragging the cases endlessly though it is mandated to deliver justice in six months. Overall, the judicial system is not able to effectively address the cause of mining ravaged rivers and affected people in timely and just manner.
Bhim Singh Rawat (firstname.lastname@example.org)